January 2, 2006

Here's a piece by David Kirkpatrick, reporting that insiders are predicting a more ragged performance before the Senate Judiciary Committee for Alito than what we recently saw from Roberts. Participants in the practice sessions -- murder boards -- are saying that, and Democrats are promising some harsher questions.

But two of Judge Alito's supporters who participated in the murder boards, speaking about the confidential sessions on condition of anonymity for fear of White House reprisals, said they emerged convinced that his demeanor was a political asset because it gave him an Everyman appeal.

"He will have a couple hairs out of place," one participant said. "I am not sure his glasses fit his facial features. He might not wear the right color tie. He won't be tanned. He will look like he is from New Jersey, because he is. That is a very useful look, because it is a natural look. He's able to go toe-to-toe with senators, and at the same time he could be your son's Little League coach."

After all these elaborate practice sessions, no one helps the man with his grooming? Or did some stylist tousle his hair and select ungainly glasses and a brown tie? "That is a very useful look" -- it announces that he's the not-Roberts. Would it be mean of us, then, to look critically at the substance of his answers? The same informant -- who has a way with words, right? -- said:

Judge Alito displayed a "street smart" New Jerseyan's willingness to talk back to his questioners. Unlike Chief Justice Roberts, Judge Alito often turned inquiries back on the lawyers who were quizzing him, politely asking them to spell out exactly what they meant, two participants said.

Judge Alito "had no bones about coming back for clarification," the same person said, adding that the judge sometimes stumped the legal experts acting in the roles of senators and suggesting that he could pose an even greater challenge to actual senators reading from staff talking points.

Crafty! This is an excellent technique. Lawprofs use it to avoid elaborate answers. It's a good way to avoid confusing and boring listeners. It helps students mobilize their reasoning powers and practice speaking in the professional mode. With Senators, the goal is less beneficent. I'm sure they/their staff are reading this article and feeling intimidated, vulnerable. What they should do now is hone their questions. But is there any hope the Senators will give up their ridiculously verbose questions? They must preen. And how will the usual preening look when the man in the chair is from New Jersey, with ill-fitting glasses and a rumpled suit, and decades and decades of honing his skills as a prosecutor and a judge.

There's always the hope Alito will blow his cool:

Some Democrats, however, say Judge Alito's less-polished style may also be a vulnerability. Two Democratic aides briefed on his meeting with Senator Charles E. Schumer, Democrat of New York, said that when the senator pressed him about an opinion he had written involving the regulation of machine guns, Judge Alito grew defensive - something else Chief Justice Roberts never did. The aides, speaking anonymously because the meeting was private, said the episode led them to hope he might lose his cool in front of the committee, as well.

In other words: "a 'street smart' New Jerseyan's willingness to talk." Why must everything always be cool? We have some real issues and disagreements. Let's cut through the blather and really engage for a change. What would this defensiveness be? I'd guess, for example, about the machine gun case, that Schumer led with the usual policy talk about gun control and the usual self-serving insistence on endless congressional power, and Alito insisted on nailing down the actual doctrine as expressed in the Lopez case and as duly interpreted by a lower court judge one year later. If he did that with questions to Schumer, designed to make Schumer reframe his question as one appropriately put to a judge, I'm sure there was some loss of cool in the room.

Bring it on! I'm so ready to blog that.

IN THE COMMENTS: OhioAnne writes astutely:

Interesting choice of words made in the article.

People participating in the administration meetings spoke anonymously "out of fear of White House reprisals," but Schumer"s aides spoke anonymously because "the meeting was private."

No chance that the White House aides spoke anonymously because the meeting was private and Schumer's did because of fear of reprisals from him?

Any chance at all that both sets of aides spoke anonymously simply because they knew they were being unprofessional by failing to adhere to confidentiality restrictions?

UPDATE: Scott Shields at MyDD calls the linked NYT article "one of the most brazen examples I've ever seen of the media rewriting Republican talking points." What's gotten under his skin?

Alito's Republican handlers are pushing this silly "Everyman" narrative in an attempt to manage public expectations. Oh, he's not being combative -- he's just a Jersey Everyman. But is that really what people want in a Supreme Court nominee?...

I have no idea what Alito's confirmation hearings will look like. But the Republicans who do seem to think it's not going to be pretty. After such a clean confirmation with Roberts, messy hearings for Alito do not bode well. "Everyman" or not, it sounds like Alito's in for a bumpy ride.

It sounds to me as though Shields is just trying to keep the anti-Alito folks fired up and resents any positive press (especially from the newspaper he thinks he ought to be able to count on to keep up the heat). And this press isn't even that positive.

I think you are going to see only token resistance from the left. After all, the new constellation of robes, primarily conceived for the expressed (not publicly) purpose of repealing Roe vs. Wade, will ultimately have the effect of further sharpening national divides regarding a definition of life which do not follow party lines and loosen the Republican hold on power when they are beaten with their own stick. In the interim, I foresee a fortune to be made in bootleg RU486s. –Anne, your insolence is exceeded only by your further insolence.

I am reminded of a delicious piece of prose from the Times of London on the occasion of George Galloway's appearance at the Senate Foreign Relation Comittee hearings last May...

The Senate describes itself, without apparent irony or hint of self-awareness, as the world’s greatest deliberative body. Wherever they travel, senators are treated with a sort of scented deference that only a republic could confer on its leaders and not risk revolution. Fawning staffers strew petals in their path; highways are made straight for them; rivers are forded lest they get their feet wet. One observer noted that senators take themselves so seriously that "they’d wear togas if they thought they could get away with it."

That was only a taste. The whole column is an ice cream sunday of the same flavor.

Prometheus: I don't comment on every comment! I do read or skim them all, and yours stood out as terribly written. I'm giving you some useful advice: if you want people to read what you write, take the trouble to write well.

I'd like to see Alito show some east coast aggression and wipe the floor with some of the senators. The pomposity of senate members is only exceeded by....um..er...you know, I don't think it is exceeded by anything! I, too, can't wait for Ann to blog the confirmation hearings.

I don't think that they are defining expectations down, just defining them differently. Roberts was good looking (cute?), smooth and knowledgeable. Of the three, I would pick knowledgeable for the next Justice and Alito fits the bill.

On the spectrum from Roberts (grown in a lab for political appeal) to Bork (all political appeal surgically removed), Alito is somewhere in the middle, certainly with enough appeal to be confirmed. The right may not have any ‘Goldbergian’ man-crushes on Alito but he is pretty clearly a smart guy who will be a good Justice. The fact that the discussion has moved from ‘Machine-Gun Alito’ and ‘Scalito’ to how his glasses fit his face and tousled hair is an excellent sign that he will be confirmed.

Alito will be confirmed, 55-45. All of the Democrats will vote against him and all of the Republicans will vote for him, once Specter says he will vote to confirm Alito because of "assurances" he received on Alito's views on "super precedents" and stare decisis. In other words, Specter will pay back his debt to the Republicans, which he incurred 2 years ago to get the Judiciary chair, and he will ignore his commitment to vote against anyone who would overrule Roe.

I think the Democrats know that the quicker they get through the process, the quicker the Roberts court can get to extending constitutional protection to haploid cells, etc. Show everyone the open cesspool where this slippery slope leads. They just don’t want to make it obvious.